Copyright and the Culture of Free

By: Mike Briggs

There is a cultural war being waged by two increasingly polarized factions, the "content creation" industry and the "culture of free". In the balance is much of the culture of past hundred years, the livelihoods of thousands of artists, and the future of creative content creation. In the interest of full disclosure, my family and I depend on the ability to market books for our sustenance. However, I am also an avid supporter of the open source movement, creative commons licensing, and copyright reform. I've been following this issue for at least ten years.

Introduction: Copyright Basics

Creating science, enjoyable books, medicines or a computer game requires effort. Most people would agree that the creation of these goods is a benefit to society. However, unlike farming, carpentry and ditch-digging, these fields produce no tangible goods. Or, more accurately, the tangible goods produced are only a mode of conveyance for the intangible product. A book, for example, is not valuable for it's pages and cover, but for the knowledge or entertainment encoded upon it's pages. If a carpenter makes a table, property law provides protection for the good, and it's sale and distribution is very straightforward. Selling thoughts, however, is a trickier business.

Humans are information magpies. We collect bright shiny ideas, enjoy complex stories etc. Our birthright is the accumulation of knowledge. The notion that some thought, or tidbit of knowledge should be hidden away, declared off-limits, or made available only to paying customers is intrinsically abhorrent. As a species, we benefit from ideas being freely available.

However, content creators, like professionals in all fields, tend to improve with time and effort. Practice, as they say, makes perfect. The problem, of course, is figuring out how to encourage creative folks to continue their pursuits long enough to make something really good. They can't (or at least generally don't) do that if they're working three other jobs trying to put food on the table.

The US constitution contains the following text, often referred to as the copyright clause:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

Of course, this was not a new idea, it was merely an embodiment of a compromise between the public and content creators that had already been well-established in Europe. By securing the exclusive right to profit from useful information to the creator of that information for a limited time, the creator had an opportunity to reap financial reward from their effort, which encourages additional creative efforts. By limiting the period of exclusivity, the public was assured eventual ownership of the knowledge.

Originally, copyrights had several important limitations. The content creator had to register a copy of the work to be protected. This allowed a creator to clearly differentiate between work done with commercial intent and everything else they created. The public had immediate access to the non-commercial works, and the registered copy insured that the public had a good copy of the material when the copyright expired. The original copyright term was for 14 years, with an additional 14 year term available upon request. Congress also made provisions for certain public uses of copyrighted materials without the author's permission. Scholarly works, satire, commentary etc. are protected by the legal doctrine of fair-use.

Current Status of the Conflict

Things have changed. Congress has repeatedly extended copyright terms, which now last the lifetime of the author plus 70 years. The registration requirement was removed, and the courts have repeatedly lowered the bar on the quantity and quality of creative expression which must be embodied in a work to qualify for copyright protection. Currently every utterance, grocery list or vacation snapshot is protected with the same force of law as the most finely crafted novel, painting or scientific publication. While protecting commercial interests, a vast swath of culture, music and literature is being lost to the black-hole of orphaned works; those works still protected by law but who's creators either cannot be found, or who no longer have an interest in the work.

Information-based products: books, movies, music, software etc. have traditionally been distributed on various media, and copyright laws operate by limiting the proliferation of the media. However,digital technology has effectively decoupled the creative content from its traditional media. In many respects this is good news, since it permits the information to be reproduced and distributed nearly instantaneously at virtually no cost. The book is free from its paper, and the music is no longer bound to the CD. However, by decoupling the media and the content, our copyright laws no longer function as they were intended. Who cares about the duplication of physical media when the content, in it's various digital forms is both more portable and more useful?

Consumers currently hold the technological high ground, while creators hold the legal field. Copyright law has been stretched to try to cover all forms of electronic transmission, and while widespread enforcement is impossible, the RIAA has managed to make spectacular examples of the few unfortunates it has successfully taken to court (while simultaneously destroying the public's sympathy for content creators). Meanwhile, torrent sites proliferate like spring flowers and consumers face increasingly invasive digital-rights-management (DRM) schemes designed to insure that they play nice. The creators of information based products demand ever-more-draconian legislation, while the consumers employ increasingly sophisticated technologies to prevent detection or conviction. Both sides are angry, uncertain, and convinced that they've been wronged.

My Interest

I've been spending an increasing amount of time playing whack-a-mole with the people trying to share Patty's hard work with a few billion of their friends. Patty works very hard to create books that she hopes people will enjoy. She also expects to be fairly compensated for her work. We're concerned that, as electronic readers become more mainstream, piracy may eventually make it impossible for her to continue writing professionally. I don't see the current war being won with technology. it's a battle of ideology. If content creation is to remain a viable occupation, it will be because people choose to pay for content. So, I've been reading everything I can find on the 'net, trying to figure out why people pirate. Many of the pirates feel completely justified in their actions, and are quite vocal about explaining why paying for content is wrong. Here's some of the most popular justifications I've encountered for piracy, as well as my reaction and comments to each one.

Arguments for Piracy

It's impossible to effectively enforce the law, and the risks are minimal. I can take what I want, and there's not much you can do about it.

This "argument", in various forms, is being broadly trumpeted by pirates. As far as I know it embodies no logical fallacy, and is an accurate assessment of the current situation. Despite it's apparent veracity, it's not a justification. This is merely positing that "Might Makes Right". Those who espouse it are effectively saying that morality, ethics, and justice are meaningless concepts. Their obedience to the law is based solely on the perceived probability of punishment. There's not much point in even arguing with these folks, they're only motivated by greed.

Economics dictates that the value of a resource is based on it's scarcity. With digital distribution, the supply is infinite, so the value of a digital work is zero. Authors can't fight economics!

This is actually a fairly clever bit of wrangling, but it commits the fallacy of division. While digital distribution does allow an existing work to copied ad infinitum at negligible cost, the distribution is not the only, nor indeed the primary, reason for the scarcity of good books. The scarcity is due to there being a limited number of authors with the time and skill to write said books.

Digital editions will surely play an increasing role in book distribution, but it doesn't obviate the need for the author, or diminish the amount of time and effort required to actually create the work. The author, not the distribution is the source of scarcity. If the author wishes to be compensated, the supply of books must be restricted, by selling copies to those willing to pay to access the content.

Charging for content is an outdated business model. Authors and publishers need to innovate or go extinct.

OK, I can't help it, I hate this argument. It's usually something said by pirates to taunt copyright holders, adding insult to injury. They often take the time to clarify just what sort of innovation is required. Naturally, anything that can be digitized can be taken without permission, so traditional content is valueless. Writing a great book isn't enough, if you want it to be worth anything, you'll need to add something to the book which has two important properties. It must make the book much more enjoyable, so that the majority of consumers will want the enhanced version. It must also not be any form of content that can be digitized (because all digital content is valueless). Until content creators manage to invent this mythical thing, all of the time and effort they put into their craft is 'outdated', and pirates are fully justified in taking it.

Somehow, it reminds me of Rumpelstiltskin, "You must spin this straw into gold by morning, or you will be put to death. Figuring out how to do it is your problem." I don't think I need to expound further on how utterly unjust, unreasonable and self-serving this argument is. Besides, I'm busy poking around for my fairy Godmother 'cause I've got this pile of straw and a deadline . . .

Content creators need to look at Linux and the open source movement, which makes content available for free. If Linux can make it work, authors should be able to do it, after all, it's not like writing a book is as hard as writing software. Author's are stupid and greedy, so we should open source their material for them.

I've worked as a programmer, DBA and sysop, and I've been using Linux since it's very early days. I'm a firm believer in open source software, and have contributed code to a number of projects at sourceforge. I'm also familiar with the creative commons, Laurence Lessig, GNU, etc.

However, there are some fundamental differences between software and entertainment. Let's take a simple utility, CP (copy for you old DOS geeks) as an example. It does a simple job, and it needs to do the same job, in the same way, on every computer. Rather than paying for a commercial version of CP on thousands of computers, the open source community builds their own, freely distributable version. Even if the first version lacks some whistles and bells, it's easy enough for other coders to add those, and distribute a new version of CP with the additional features. The model works very well for simple code, but somewhat less well for complex projects. Unlike entertainment, utility programs are conservative; they're expected to work the same way everywhere, and don't need to change very often. Once someone donates the time and effort to create a working version, it's useful to many people, and will presumably remain useful indefinitely. It's the combination of broad utility and longevity that provides the value in open-source development.

So, imagine if authors took this argument to heart, and adopted the open source model. Some daring author donates two hundred pages of a generic science fiction novel, and folks begin tweaking it to produce a better book. Actually, I can't imagine this model working for something as abstract as a book, but let's suppose that somehow it results in novel of phenomenal quality. Would this satisfy the need for science fiction reading for the majority of readers on a semi-permanent basis? Would they read it, and be content to read nothing else? Of course not, people don't want to read just one book, regardless of how finely crafted it might be. The reading public demands the production of many new titles each month, all written at a professional level (which is not as easy as the pirates apparently believe). The open source model is simply not appropriate for the market. Of course, I'm sure there are many who will say that I'm out of touch and just don't "get it". I invite you to prove me wrong. After all, commercial and open source software exist side by side, so the current publishing industry shouldn't be an impediment. Feel free to develop a line of open-source books. If you attract my market, so be it. I predict that getting the free talent (and project maintainers) to produce a half-dozen or so original books each month will be impossible. Good Luck!

Information Wants To Be Free.

This slogan has become the rallying point for the "free culture" movement, who generally feel that copyright, patents, and DRM are restricting our freedom of expression by locking up the building blocks of our shared culture. They feel that artistic endeavor should be freely shared, and many of them embrace Creative Commons licensing for their own work. Many free culture supporters favor the complete abolition of intellectual property protections, while others would prefer to reform the law. Books could (and have) be written on what is actually meant by free. There's free as in cost, free from DRM, free for sampling or derivative works, free for study . . . however, that's far beyond the scope of this little article to analyze.

Honestly, I agree with many of these ideas. I think copyright reform is badly overdue, and DRM punishes the legitimate customer. I applaud those who release their work under the creative commons. Giving of your time and creative talent to freely enrich the world is a lovely thing, and kudos are in order for those who choose to do so.

Some of the free culture supporters are dedicated to "liberating" content that is "held captive" by greedy creators demanding financial recompense for its release. They crack movies, books and music and upload them for the masses.

The problem is that not all information wants to be free. My bank account and PIN number, for example, don't want to be free. Some information is cheap to produce, and some is expensive. Blockbuster movies are extremely expensive to produce, and high-quality news requires reporters and news offices to be maintained around the globe. This information is not free from cost, and the costs need to be recovered in order to continue to produce information. Ultimately, it needs to be the content creator who decides which information should be freely shared, and which has commercial value. The pirates are forcibly sharing other people's work, depriving them of the opportunity to be compensated for the very real costs of creation, which is not morally defensible.

Economics states that the customer, not the seller, is the final arbitrator of price. It is the customer that ultimately sets the value of the work. We, the customers, have set the price of digital works at zero. Too bad, but you can't argue with economics!

Yet more tortuous twisting of an oft-abused science. All economic theory, however, is based on the presumption of a willing buyer and a willing seller. In the case of copyright infringement, the seller was not willing. If a mugger holds a gun to your head and says, "Give me your wallet!", the ensuing transaction cannot be construed to indicate that money is valueless. It's robbery, not free trade.

In simple economics, a buyer may do three things: buy, negotiate, or do without. The pirates introduce a fourth option, taking the offered item without paying. They are, by definition, not customers, and their action is not covered by simple economics. However, since your econ professor can't help, you might try either moral philosophy or jurisprudence classes for more information!

Copyright extension is the real crime. Why should an author get paid practically forever for the work they did last year? Copyright is nothing more than theft from the public domain. It's morally acceptable to steal from thieves like that!

I've heard several variations on this argument. The basic idea seems to be that authors are somehow unconscionably greedy, working for a few months and then living a life of luxury forever, while honest folks work for wages every day. Naturally, the only way to fix the situation is to take the author's work for free.

The fact is that most authors never manage to make a living wage despite the excessively long copyright terms. It takes many months, often years to craft a good novel and get it published. Authors don't get paid an hourly wage, so the sales of the final product need to compensate for hundreds or thousands of hours of labor. At fifty cents or so per book, it can take a long time to make writing a profitable venture.

Of course, this argument is really a red herring. Copyright terms have been extended to ridiculous lengths, and most authors would probably agree that copyright reform is needed. However, the vast majority of book piracy involves new releases, not books that are thirty or forty years old. Copyright reform is a serious issue, but it has virtually nothing to do with the illegal downloading of last week's bestselling novel.

The world doesn't owe Authors a living. It's wrong for them to demand that the public support them.

The world certainly doesn't owe author's (or anyone else) a living. The statement presumes that authors produce nothing of value, then insinuates that they are somehow demanding to be supported in an unproductive life. The skilled craftsman is portrayed as a demanding beggar. Logically, it's an ad-hominem attack. Since it's also untrue, it's simply slander. Authors produce a product for which there is a significant demand, and ask only the right to sell their wares without having them taken and distributed for free. They're craftsmen, not indigents, and they're demanding a fair chance not a free lunch.

With computers, copying is facile, free, and nearly instantaneous. You can't put the genie back in the bottle, or undo technology. Your business has been invalidated by technology, too bad.

The idea seems to be that people are incapable of controlling their actions, and will do whatever technology permits. Since copyright infringement requires only a few mouse clicks, it's absolutely inevitable, and therefore must be socially acceptable. This argument is based on the premise that morality is determined by convenience.

Let's assume, for a second, that's true. Since modern firearms make killing folks as easy as point-and-click, I assume that the pirates also support that. After all, it's both fast and easy, so it would be senseless to legislate against it, or censure those who do it, right?

Obviously, there's more to morality than convenience. Enforcement may be a legitimate concern, but that doesn't impact the morality of piracy.

Authors and publishing houses make too much money. This is unfair, so the public has a right to download their work for free

OK, this one irks me. First, most of the folks who work in publishing aren't exactly rich. Second, even if they do manage to make a good living, this argument embodies the classical logical fallacy of the irrelevant appeal. The pirates are suggesting that it's morally acceptable to take whatever you want from someone wealthier than you. Class warfare and jealousy are not a sound foundation for moral judgment.

It's not stealing, it's copyright infringement!

Absolutely true, score a point for the pirates. The issue is confused enough without mis-labeling the crime. Sometimes this argument is trotted out as a polite request for the use of accurate terms, which I find perfectly acceptable. In fact, I'm being slightly hypocritical by using the term piracy here, which is also an unrelated crime. My justification is that piracy has become the common vernacular for copyright infringement used by both sides of the argument. Throw tomatoes if you must.

Frequently the demand for proper terminology is combined with some intimation that copyright infringement either isn't a crime, or is somehow not a real crime, often by pointing out that it's covered by civil rather than criminal law. You can find some information on the difference between civil and criminal law here. Copyright infringement is illegal, with serious penalties including jail time. Morally it's kissing cousins with theft, as it involves taking something without permission and without payment. The pirates are quick to point out that copying doesn't deprive the author of their work, because they make a copy rather than taking the original file. They usually say something about "not depriving the author of the use of his product", but since the author's intended use was selling copies, I'm a little unclear about the point of this argument.

Since no discussion of copyright infringement is complete without a flawed analogy, here's mine. Remember the old traveling circuses under the big top? Copyright infringement is like sneaking around back, and crawling under the tent. Nobody is physically harmed, and nothing got taken, there's just a few more folks in the audience than on the ticket sales. However, those lost sales hurt the circus performers that depend on ticket sales for their livelihood. Moreover, it's unfair to every customer who did pay good money.

Just like having a few folks crawl under the tent, piracy is currently just an annoyance. However it's gaining momentum. Now the pirates are holding up the back of the tent, and waving people around to the "free" entrance. Remember, by their logic its not theft since they aren't taking anything, except the right of the performers to receive fair payment for their services. All I know is that in a real circus, there were always some mean clowns running around with big paddles looking for anyone trying to sneak in. I don't think they were much interested in talking semantics, and frankly neither am I. Call it copyright infringement, or theft, or 'liberating without permission', it all amounts to the same thing.

Real art is created out of love. Anyone who charges for art is a prostitute, and the world would be better off without them. Pirates are just weeding out the ones who are in it for the money, and art will be better for it. Real artists can work a full-time job, raise their kids, mow the lawn and still find time to master their art and produce tons of wonderful stuff for the sheer joy of creation.

Excuse me while I join the Utopian conclave. Maybe I'll sign you up too. Of course artists should love what they do. Everyone should. Heck, I've had a couple of jobs I loved, but I didn't offer to work for free. Why should artists? Art takes time and effort, and most artists work better with basic things like food and shelter.

More importantly, it takes time to master any craft, writing and music included. Any number of people might complete the first draft of a novel, there is a joy in creation. However, most first novels won't be publishable. Far fewer people write the second, or the third, or the tenth, and those that do are generally hoping to make some money. Also, most professional authors will tell you that while there's often some magic in the first draft, editing is work. I don't want to pick on armature writers, but go read a bunch of blogs and fanfic and you'll see that very few people are going to slog through the multiple rounds of drafts and edits it takes to produce professional quality work for fun. I simply don't believe that there are millions of talented people producing professional quality books,and willing to do so without hope of renumeration. If there were, the publishers would be acquiring these wonderful books cheaply from new authors rather than paying much higher acquisition fees to established authors.

Customers have the right to "Try before they buy". A lot of books, music and film aren't very good, and the customer shouldn't be expected to pay for bad material. Piracy is just a way for the customer to see if they like. It's like tipping at a restaurant -- if artists deliver an exceptional product, people may decide to pay for it.

There are, of course, many more arguments that could be examined, most of which are simply excuses or rationalization for engaging in what the pirate knows is unethical behavior.

Challenges for Publishers

While pirating books may not be ethically defensible in an absolute sense, it's easy to see how customers could become frustrated with current commercial offerings. As a frequent consumer of e-books, I sympathize. Any new industry has growing pains, and product offerings tend to get refined over time. However, industries who are competing with an established, convenient, and free (albeit illegal) competitor would do well to make customer satisfaction and convenience top priorities.

E-book offerings from major publishers are imperfect. It's not always easy, or even possible, to find an e-book of your favorite author legally. Digital editions also suffer from numerous incompatible file formats, rights restrictions, and too often have poor formatting. Many publishers are approaching digital editions tentatively and with distaste, acutely aware of how dramatically their business could be affected. Publishing, for the record, is an extremely conservative business. Ebooks aren't going away, and publishers need to make sure that the product received by honest customers is as good as what the pirate sites are providing.

Anti piracy efforts too often hurt the honest consumer. For example, a few months ago we flew to France. Anticipating a long flight, I purchased a number of ebooks for my Sony reader. However, my wife and I own identical readers, and somehow I purchased from her account. Ten minutes into a twelve hour flight, as I settled in for my much-anticipated Jim Butcher fix, I found that none of the books I'd purchased would display on my machine. They were keyed to Patty's reader, and I wasn't authorized to view them. I couldn't help but think that while my expensive e-books were useless, pirated versions would have worked fine.

Publishers face many challenges, but I'm optimistic about the eventual outcome. Most customers are happy to support authors, and are willing to pay a fair price for a quality product. The publishers want to make great books available to their customers, and they're working hard to refine their digital offerings. Having willing buyers and willing sellers is the foundation for all successful commerce. The pirates have been remarkably successful at convincing publishers that all customers are potential criminals, and casting honest customers as chumps. However, I believe that readers and publishers are too smart to let the pirates win.